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Judges Weigh Limits of Health Law’s Powers

Mike Griffith of Canton, Ga., demonstrated in Atlanta, where people waited for hours to get into the 11th Circuit hearing.Credit
John Bazemore/Associated Press

ATLANTA — In perhaps the weightiest of the dozens of challenges to the Obama health care law, a panel of appellate judges grappled Wednesday with the essential quandary of the case: if the federal government can require Americans to buy medical insurance, what constitutional limit would prevent it from mandating all manner of purchases and activities?

The three judges, selected at random from among 10 members of the United States Court of Appeals for the 11th Circuit, sprayed lawyers Gatling-gun style with questions about where a limiting principle might be drawn, as it must if the sweeping law is to pass judicial review. After a nearly three-hour hearing, Chief Judge Joel F. Dubina called the litigation “a very difficult case,” but provided no clues as to when or how the court might rule.

In the past five weeks, the health care litigation has taken on the feel of a traveling road show in wingtips, with similar hearings in appellate courts in Cincinnati, Richmond, Va., and now Atlanta. At each stop, the august courtrooms have been populated with many of the same lawyers and observers, and the same advocacy groups and commentators have held dueling news conferences outside each courthouse.

Lawyers involved in the cases have trouble forecasting which might ultimately be accepted for review by the Supreme Court.

But the 11th Circuit case, because of the political heft of the plaintiffs and the intellectual firepower of the lawyers, has garnered the most attention. Spectators and reporters began lining up before 6 a.m. for the 9:30 a.m. hearing, and some had to be seated in an overflow courtroom.

The plaintiffs include Republican governors and attorneys general from 26 states, and five of the attorneys general attended Wednesday. The hearing featured a clash of titans among three experienced litigators who claim 73 Supreme Court appearances among them: Acting Solicitor General Neal K. Katyal for the Obama administration; former Solicitor General Paul D. Clement for the states; and Michael A. Carvin for the National Federation of Independent Business, another plaintiff.

One of the Supreme Court cases that Mr. Clement won as solicitor general was Gonzales v. Raich in 2005, when the court held that Congress’s authority over commerce was so broad that it could regulate even an individual’s home cultivation of medical marijuana. That precedent is now central to the government’s defense of the health care law that Mr. Clement is challenging.

The law, the Affordable Care Act, enacted in March 2010, aims to insure 32 million Americans by mandating that most people obtain health insurance, subsidizing policies for the poor and requiring that insurers accept even those with pre-existing health problems. Supporters of those provisions, which take effect in 2014, argue that insurers will be able to cover the sick only if healthier consumers are forced to pay into the insurance pool.

Among 31 separate legal challenges to the law, five cases have yielded decisions on the merits from lower-level district court judges. Three judges appointed by Democratic presidents upheld the law, while two Republican appointees rejected all or part of it.

The 11th Circuit panel includes Judge Frank M. Hull, who was named by President Bill Clinton; Judge Stanley Marcus, a Clinton appointee who had previously been placed on the District Court by Ronald Reagan; and Chief Judge Dubina, who was appointed by the first President Bush.

Photo

Crystal Johnson, right, argued Wednesday with a protester outside the court in Atlanta where judges weighed the health care law.Credit
John Bazemore/Associated Press

Judge Dubina’s daughter, Representative Martha Roby, is a newly elected Republican from Alabama who voted with the majority in January to repeal the health care law. That measure failed in the Democrat-controlled Senate, leaving the law’s future in the lap of the courts, at least until the 2012 election.

The decision at issue on Wednesday was handed down on Jan. 31 by Judge Roger Vinson of Federal District Court in Pensacola, Fla. Judge Vinson invalidated the insurance requirement, and then ruled that the mandate was so essential to the architecture of the law that the entire act must fall. He later stayed his ruling so the law would remain in effect pending appeals.

Judge Vinson wrote that while the Commerce Clause of the Constitution gave the government broad authority to regulate interstate commerce, it did not allow Congress to penalize people for the “inactivity” of declining to buy a commercial product. The health law imposes an income tax penalty on those who do not have coverage.

Mr. Clement, who was retained by the states for a fee of $250,000, argued that by requiring Americans to buy insurance, the act unconstitutionally conscripted citizens into the stream of commerce. He stressed that the insurance mandate constituted an unprecedented assertion of federal power that could leave virtually every human act — and passive choice — subject to Congress’s whim.

It would be permissible, Mr. Clement acknowledged under questioning, for Congress to require insurance or other payment by those who are being treated in an emergency room, because they would already be in the stream of commerce. But he said it was a different matter to require them to pay prospectively for future care.

“It boils down to the question of whether the federal government can compel people into commerce to better regulate the individual,” Mr. Clement said.

The judges repeatedly posed formulations of that question to Mr. Katyal. “If they could compel this, what purchase could they not compel?” Judge Marcus asked.

But Mr. Katyal urged the judges to see the law not as a mandate to buy an insurance policy, but as a regulation of the means of payment for care that individuals would inevitably consume. Americans would not be conscripted into the market, Mr. Katyal suggested, because the uniquely unpredictable demand for health care would have already placed them there.

“It’s all about financing,” Mr. Katyal asserted. “It’s about regulating whether people are paying cash or credit.”

Mr. Katyal said that the insurance mandate clearly had an economic rationale because governments, hospitals and the privately insured end up shouldering costs for uninsured patients who cannot pay. That rationale, he said, satisfies the test set by the Supreme Court in a string of prior decisions: that the Commerce Clause permits Congress to regulate activities that have a substantial effect on interstate commerce.

What the Supreme Court has never considered is whether a choice to not buy a product can be considered an “activity” that can be regulated, as the government asserts.

Last week, the Court of Appeals for the Sixth Circuit in Cincinnati considered a Michigan ruling that upheld the health law. Three weeks before that, the Fourth Circuit in Richmond heard arguments in two cases from different courts that yielded contradictory outcomes. Another hearing is scheduled for September in the District of Columbia.

A version of this article appears in print on June 9, 2011, on page A17 of the New York edition with the headline: Judges Weigh Limits Of Health Law’s Powers. Order Reprints|Today's Paper|Subscribe